Case C‑7/21

LKW WALTER Internationale Transportorganisation AG

v

CB and Others

(Request for a preliminary ruling from the Bezirksgericht Bleiburg)

Judgment of the Court (Fourth Chamber), 7 July 2022

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Service of documents – Regulation (EC) No 1393/2007 – Article 8(1) – One-week period within which the right to refuse to accept a document is to be exercised – Enforcement order made in one Member State and served in another Member State in the language of the first Member State only – Legislation of that first Member State laying down an eight-day period to lodge an objection to that order – Period for lodging an objection starting to run at the same time as the period laid down for the purpose of exercising the right to refuse to accept the document – Article 47 of the Charter of Fundamental Rights of the European Union – Right to an effective remedy)

Judicial cooperation in civil matters – Service of judicial and extrajudicial documents – Regulation No 1393/2007 – Refusal to accept a document – Right conferred on the addressee of the document under certain conditions – One-week period within which to refuse – Period for seeking a remedy against a document in the Member State of origin starting to run at the same time as the period for refusing to accept the document – Not permissible

(Charter of Fundamental Rights of the European Union, Art. 47, second para.; European Parliament and Council Regulation No 1393/2007, recitals 2 and 10 and Art. 8(1))

(see paragraphs 36, 39, 41, 45-49, operative part)

Résumé

In 2019, a Slovenian court served on LKW WALTER Internationale Transportorganisation AG, a company established in Austria, an order for enforcement made in absentia, on the basis of authentic documents, written in Slovenian. The Austrian lawyers representing that company then lodged an objection to that order. However, that objection was rejected because the eight-day period for lodging an objection starting on the day of service of the order, laid down in Slovenian law, had not been complied with.

As a result of the rejection of the objection, the company brought an action for damages against those lawyers before the Bezirksgericht Bleiburg (District Court, Bleiburg, Austria). In answer, they state that the period for lodging an objection in Slovenian law is contrary, inter alia, to Regulation No 1393/2007 on the service of documents ( 1 ) and the right to effective judicial protection, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The correct application of those provisions would have therefore prevented the objection from being rejected as out of time.

In the light of those arguments, the court seised is uncertain, inter alia, about the relationship between the starting point of the eight-day period for lodging an objection, laid down in Slovenian law, and Article 8 of Regulation No 1393/2007. That provision enables the addressee of a document to be served to refuse, within one week, to accept that document where, as in the present case, it is not written in or accompanied by a translation into one of the languages which the addressee is deemed to understand.

A request having been made for a preliminary ruling, the Court of Justice rules that Article 8(1) of Regulation No 1393/2007, read in conjunction with Article 47 of the Charter, precludes legislation of the Member State of the authority which issued a document to be served, pursuant to which the starting point of the one-week period referred to in Article 8(1) of that regulation, within which the addressee of such a document may refuse to accept it on one of the grounds set out in that provision, is the same as the starting point for the period within which a remedy is to be sought against that document in that Member State.

Findings of the Court

According to the Court’s case-law, the right to refuse to accept a document to be served, laid down in Article 8(1) of Regulation No 1393/2007, makes it possible to protect the rights of defence of the addressee of that document, in compliance with the requirements of a fair trial, enshrined in the second paragraph of Article 47 of the Charter. It is therefore important to ensure that the addressee of a document to be served, written in a language other than that which he or she is deemed to understand, is actually in a position to exercise the right to refuse to accept that document, which forms part of the fundamental right to effective judicial protection.

In particular, the practical effect of the right to refuse to accept a document to be served requires, first, that the addressee has been informed of the existence of that right. To that end, the standard form set out in Annex II to Regulation No 1393/2007 must be used in a mandatory and systematic manner. Second, the addressee must have the whole of the one-week period, laid down in Article 8(1) of that regulation, to assess whether it is appropriate to accept or refuse to accept the document and, in the event of refusal, to return it.

Accordingly, where the document to be served is not written in or translated into one of the languages referred to in Article 8(1) of Regulation No 1393/2007, the starting point for the one-week period for exercising the right to refuse to accept the document cannot, without undermining the effectiveness of that provision, read in conjunction with Article 47 of the Charter, be the same as the starting point of the period within which a right of appeal is to be exercised in accordance with the legislation of the Member State of origin. That latter period must, in principle, start to run after the expiry of the first one-week period.

If it were otherwise, the addressee of the document may be encouraged, in order not to suffer a procedural disadvantage as a result of his or her cross-border situation, to choose the option of refusing that document. Such an incentive would run counter to the objective of Regulation No 1393/2007, which is, inter alia, to facilitate the expedited transmission of judicial and extrajudicial documents in civil and commercial matters for the purpose of service, without prejudice to compliance with the rights of defence of the addressee of those documents. Thus, to secure the effectiveness of Regulation No 1393/2007, the possibility of refusing service of documents should be confined to exceptional situations.

( 1 ) Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79).